In Bissoon-Dath v. Sony Computer Entertainment America, Inc., the US District Court for the Northern District of California granted summary judgment in favour of Sony in a copyright dispute over the popular God of War video game.
The plaintiffs alleged that Sony and a former employee had infringed the plaintiffs’ copyrighted works (two treatments, two screenplays and a map) to develop the God of War video game. Both the plaintiffs’ works and the video game involve a mortal human on a quest at the behest of a Greek god. Sony successfully moved for summary judgment, contending that any similarities between elements of the plaintiffs’ works and God of War were not protectable under copyright law.
To succeed in a copyright infringement action in the US, the plaintiff must establish that he or she owns a valid copyright in the work at issue and that the defendant copied the work. As the plaintiffs in this case did not present direct evidence of copying, they had to show that the defendants had access to the work and that the works were substantially similar.
On a motion for summary judgment, the court applied the "extrinsic test" for determining substantial similarity. That test involves "a comparison of specific, concrete elements, focusing on ‘articulable similarities between the plot, themes, dialogue, mood, settings, pace, characters, and sequence of events.’" The court will filter out and disregard non-protectable elements.
In her reasons for decision, Judge Patel noted that "Copyright law protects a writer’s expression of ideas but not the ideas themselves." If, however, the author strings together a significant number of unprotectable elements, that sequence of events may be eligible for copyright protection. To satisfy the test, the court will look to see if there are sufficient similarities and common patterns between the sequence of events and the relationships between them.
After examining the various concrete elements, Judge Patel concluded that no reasonable juror could find substantial similarity of expression between God of War and the plaintiffs’ works, even if access to all of plaintiffs’ works were proven. In particular, she found that:
- There were some similarities between the stories’ plots, but the motivations, tasks and accomplishments of the heroes were different. Once the unprotectable elements were filtered, the plots were only similar at a generalized level.
- The shared settings were "generic and clichéd for stories involving ancient Greece and Greek gods."
- The characters were stock figures, which "have been used widely in both ancient and modern artistic words, in the naming of astronomical bodies and spacecraft, and in other fields."
- The sequence of elements and the relationships between them were dissimilar.
McCarthy Tétrault Notes
The Sony case is just one of many cases around the world where judges have been careful to guard the balance between the freedom to copy ideas and concepts and the restrictions that copyright imposes on copying of expression in copyright materials. A good Canadian example is Delrina Corp. v. Triolet Systems Inc. Another example is the UK case, Baigent & Anor v. The Random House Group Ltd.
Separating ideas and expression can often be a difficult task, but it is a fundamentally important one. Courts are sometimes challenged in delineating the boundaries as the recent Québec case, Robinson c. Films Cinar Inc. illustrates. However, the idea-expression dichotomy plays a critical role that should not be lost when assessing copyrights’ framework role in mediating between the freedom to copy and to compete in the marketplace of ideas and the protection that copyright confers on creative labours (or as we say in Canada, works created with sufficient "skill and judgement" to make them original).